The Numerous Ways You Can Find Yourself On A Terrorist Watchlist

Placement on a terrorism watchlist is a life-changing event. Your
travel is monitored and in many cases restricted. If overseas,
you could be stranded, costing your employment or reunion with
your family. You could be detained and, certain lawsuits allege,
tortured by foreign governments.

Yet the ease with which someone can be placed on US watchlists
and terrorism databases contrasts markedly with the impact
placement has. A long-withheld document published on Wednesday by the Intercept
detailing the guidelines for placement shows that the standards
for inclusion are far lower than probable cause, and the ability
for someone caught in the datasets to challenge their placement
do not exist. In 2013, the government made 468,749 nominations
for inclusion to the Terrorist Screening Database, up from
227,932 nominations in 2009; few are rejected.

The rise – and the low standards the Intercept documented – is
partially explained by the near-miss airliner bombing in
Christmas 2009, by a man connected to a Yemeni branch of
al-Qaida. Partially it is explained by the overwhelming secrecy
surrounding the process: attorney general Eric Holder has called
it a state secret (although the guidance document itself is
unclassified), preventing meaningful outside challenges that
would recalibrate a balance between reasonable expectations of
security and liberty.

That secrecy, as the Intercept's publication indicates, is
starting to erode – slowly. Recent court cases have given the
beginnings of insight into how the US government's apparatus of
terrorism databases and watchlists works in practice. Here is a
guide.

They're Reading Your Tweets

The watchlisting guidance says that "first amendment protected
activity alone shall not be the basis" for nominating someone to
the lists. The key word: alone. What you say, write and
publish can and will be used against you. Particularly if you
tweet it, pin it or share it.

The guidelines recognize that looking at "postings on social
media sites" is constitutionally problematic. But those posts
"should not automatically be discounted", the guidelines state.
Instead, the agency seeking to watchlist someone should evaluate
the "credibility of the source, as well as the nature and
specificity of the information". If they're concerned about a
tweet, in other words, they're likely to go through a user's
timeline. That joke about that band blowing up could come back to
haunt you at the airport.

Where you go might get you placed on the list – and then
stranded

An example given of "potential behavioral indicators" of
terrorism is "travel for no known lawful or legitimate purpose to
a locus of TERRORISM ACTIVITY".

Not defined: "lawful", "legitimate" or "locus". That could mean
specific training camps, travel to which few would dispute the
merits of watchlisting. Or it could mean entire countries where
terrorists are known or suspected of operating – and where
millions of Americans travel every year.

The guidelines themselves, in that very section, warn that such
behavioral indicators include "activity that may have innocent
explanations wholly unrelated to terrorism". It warns analysts
not to judge any circumstance "in isolation".

What happens on the no-fly list does not stay on the no-fly list.
A federal judge, writing in June, noted that the FBI's Terrorist
Screening Center shares information on banned passengers with 22
foreign governments as well as "ship captains", resulting in
potential "interference with an individual's ability to travel by
means other than commercial airlines".

Many people who have sued the US government over the watchlists
have reported being unable to return from travel abroad. Ali
Ahmed, a US citizen in San Diego, attempted in 2012 to fly to
Kenya to meet his fiancee for their arranged marriage. But first
he flew to Saudi Arabia to make the religiously encouraged
pilgrimage to Mecca; he found himself stranded in Bahrain after he was unable to
enter Kenya. Ayman Latif, a disabled US marine originally from
Miami who now lives in Egypt, was prevented from flying to the US
for a disability evaluation from the Department of Veterans
Affairs.

There's room for the family (and perhaps your
friends)

A precursor data set that feeds the Terrorist Screening Database
(TSDB or, "the watchlist") is the Terrorist Identities Datamart
Environment, or TIDE, maintained by the National Counterterrorism
Center. TIDE contains records of known or suspected international
terrorists. It also contains information on their families and
perhaps their friends.

"Alien spouses and children" of people NCTC labels terrorists get
put into TIDE. They "may be inadmissible to the United States",
presumed to be dangerous. TIDE also contains "non-terrorist"
records of people who have a "close relationship with KNOWN or
SUSPECTED terrorists", the guidance reads.

Examples listed are fathers or brothers, although the guidance
does not specify a blood or marital relationship as necessary for
inclusion. Those people can be American citizens or non-citizens
inside the United States. While those "close relation[s]" are not
supposed to be passed on for watchlisting absent other
"derogatory information", their data may be retained within TIDE
for unspecified "analytic purposes".

The guidelines explicitly state
that someone "acquitted or against whom charges are dismissed for
a crime related to terrorism" can still be watchlisted.

A federal official nominating such a person for inclusion on the
list just needs "reasonable suspicion" of a danger – something
defined as more than "mere guesses or hunches", based on
articulable information or "rational inferences" from it, but far
less than probable cause. A judge or jury's decision is not
controlling.

Watch How You Walk

In keeping with a general enthusiasm exhibited by law enforcement
and the military for identifying someone based on their seemingly
unique physical attributes, biometric information is eligible as
a criteria to watchlist someone.REUTERS/ Jana
Asenbrennerova

Several of those biometric identifiers are traditional law
enforcement ones, like fingerprints; others are exceptionally
targeted, like DNA. Then there are others that reflect emerging
or immature analytic subjects: "digital images", iris scans, and
"gait" – that is, the way you walk.

Gait and other biometric identifiers do not appear sufficient to
watchlist someone.

But they are sufficient to nominate someone to the watchlist or
TIDE, provided they rise to the "minimum substantive derogatory
standards" – articulable reasons for suspecting someone of
involvement of terrorism, a far lower standard than probable
cause – unless they come accompanied with evidence that the
manner of walk in question includes "an individual with a defined
relationship with the KNOWN or SUSPECTED terrorist". It does not
appear that a particular swagger by itself can be watchlisted.

Lisa Monaco is a former US attorney who holds one of the most
powerful and least accountable positions in the US security
apparatus: assistant to the president for homeland security and
counter-terrorism. She has enormous influence over the
watchlisting system.

The guidelines empower Monaco, her successor or a designee to
make a "temporary, threat-based upgrade" to "categories of
individuals" already watchlisted. The intent appears to be the
creation of a single government official able to rapidly keep
people off airlines once threat information, often fragmentary
and rarely specific, emerges to indicate an imminent terrorist
attack. It is unclear what characterizes a "category". The White
House says she has never exercised the power.

Monaco, like others holding her position, does not answer to
Congress. No Senate confirms her. Anyone who tries to obtain her
official communications will face a legal defense of executive
privilege. It appears commensurate with the extraordinary if
inconsistent secrecy surrounding watchlisting – attorney general
Eric Holder said the procedures were a state secret even as the
guidelines outlining them are not classified – that she and not a
Senate-confirmable appointee makes the upgrading decision.

An administration official declined to confirm authenticity of
the document, but said Monaco has never exercised any such
temporary authority. The administration did not say why she and
not a cabinet official or subordinate has those powers in the
first place.

You Can Be Turned Into An Informant

Keeping track of suspected terrorists may not be the only purpose
the watchlisting system serves. Recent lawsuits allege that the
FBI uses it to as leverage to turn people into snitches.

A 30-year-old Afghan American, Naveed Shinwari, found that after
FBI agents questioned him about his 2012 travel to Afghanistan –
he was getting married – he couldn't obtain a boarding pass he
needed for an out-of-state job interview. Soon he found himself
talking to other FBI agents, who wanted to know if he knew anyone
"threatening" his community in Omaha, Nebraska.

"That’s where it was mentioned to me: you help us, we help you.
We know you don’t have a job; we’ll give you money," Shinwari,
who is suing over the apparent quid pro quo, told the Guardian in April.

Similarly, in Oregon, a man named Yonas Fikre is suing the government for
allegedly attempting to parlay his no-fly list placement into
getting him to infiltrate a prominent Portland mosque. After
Fikre declined, he claims, he traveled to the United Arab
Emirates, where he was detained, beaten on the soles of his feet
and placed in "stress positions" – all, he says, while his
torturers asked him questions about the Portland mosque that were
suspiciously similar to those the FBI asked.

Effectively, said Gadeir Abbas, attorney for the Council on
American-Islamic Relations, the watchlists "provide law
enforcement with an extra-judicial tool to impose consequences on
predominantly Muslims who choose to exercise their rights instead
of becoming informants."

Being unable to travel is in some ways more invasive than other
forms of surveillance. Unless your friends spend their time
digging through court records, they will be unlikely to find out
that, say, your assets were frozen, even you suddenly can't pay
for dinners. Not all jobs ask about or care about an arrest.

Traveling is different. Being unable to travel on short notice is
what Abbas calls a "publicly accessible fact" – that is,
something your friends, family and co-workers will learn about in
time. His client Gulet Mohammed is an information-technology
professional in northern Virginia. "Not allowing him to be able
to cover great distances in a short amount of time, that has a
dramatic impact on what his prospects are," Abbas said.

Earl Knaeble IV, an army veteran from California, alleges in a
lawsuit that he lost a job offered to him after he was unable to
return to the US for a pre-employment medical exam after he got
married in Colombia. He attempted, unsuccessfully, to drive home.

You're Stuck On The List

There is no procedure to challenge and reverse your status on the
no-fly list, the terrorism watchlist or TIDE. Inclusion on any is
not typically disclosed – making legal remedies difficult – nor
does the government provide any process for removal. Travelers
suspicious about why their attempts to fly were unsuccessful can
launch a redress request through the Department of Homeland
Security, but that process does not challenge inclusion on a
watchlist or database, nor will even successful requests
guarantee against future travel restrictions. Procedures that
will, identified within the guidance, are exclusively internal
government processes.

"The only way to get off the federal watchlist is through the
beneficence of a federal agent, routinely coupled with some form
of cooperation with the FBI," Abbas said.

But that lack of redress has now imperiled the no-fly list. Last
month, in a federal judge in Oregon ruled that the inability of
individuals to extricate themselves from the list is a
due-process violation, rejecting the government's contention that
there is no constitutional right to travel.

"Such an argument ignores the numerous reasons that an individual
may have for wanting or needing to travel overseas quickly, such
as the birth of a child, the death of a loved one, a business
opportunity or a religious obligation," judge Anna Brown found.

Yet the legal battle over the no-fly list is practically certain
to continue. Nor does Brown's ruling touch on the broader
watchlists and datasets from which the no-fly list draws.